Phillips v. State, No. 3--174A4

• Docket Nº: No. 3--174A4
• Citation: 313 N.E.2d 101, 160 Ind.App. 647
• Case Date: June 28, 1974
• Court: Court of Appeals of Indiana

Page 101

313 N.E.2d 101 160 Ind.App. 647 Rickey Lee PHILLIPS, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 3--174A4. Court of Appeals of Indiana, Third District. June 28, 1974.

[160 Ind.App. 648]

Page 102

Jerome E. Levendoski, Fort Wayne, for defendant-appellant.

Theodore L. Sendak, Atty. Gen. of Ind., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Chief Judge.

On March 15, 1973, defendant-appellant Rickey Lee Phillips was charged by affidavit with the crime of possession of heroin. IC 1971, 35--24--1--20(c), Ind.Ann.Stat. § 10--3538(c) (Burns' Supp.1973). Following trial to the court, Phillips was found guilty as charged, ordered committed to the Indiana Department of Corrections for a period of not less than two nor more than ten years and fined in the penal sum of $100. Thereafter, his motion to correct errors was denied and he then perfected this appeal.

The issues presented for review are whether appellant's conviction is supported by sufficient evidence and whether the judgment of the trial court is contrary to law.

An examination of the evidence most favorable to the State discloses that at approximately 11:30 P.M. on the evening of February 19, 1973, Officers Daniel Lee Blakely and Richard R. Witte of the Police Department of the City of Fort Wayne, [160 Ind.App. 649] Indiana, were dispatched to 431 East DeWald Street in Fort Wayne. Upon their arrival, the officers were informed by two female complainants that appellant Phillips had been harassing and threatening them but had subsequently departed. Following a second dispatch at approximately twelve midnight, the officers returned to the same location and found that Phillips was present. One of the complainants with whom they had previously spoken requested that the officers arrest Phillips 'because she was in fear of her life.' At the direction of Officers Blakely and Witte, the complainant subsequently placed Phillips under arrest on charges of assault and battery and disorderly conduct. Appellant was then subjected to a 'pat-down' search before being placed in the police car.

Following the search, Phillips was transported to the 'County lockup' where he was placed in the custody of the jail officer by Officer Blakely. During the time in which Phillips was being transferred to the jail, Officer Witte remained with the squad car. Upon his return, Officer Blakely proceeded to close the rear door of the patrol car on the passenger side through which Phillips had earlier been removed. As he did so, the officer noticed a small tinfoil packet on the floor of the rear compartment near where appellant had been seated. Closer investigation by Officer Blakely revealed that the packet contained a white powdery substance. Later chemical analysis determined that the substance contained heroin.

The record further discloses that pursuant to a directive from the office of the Chief of Police, Officers Blakely and

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Witte had removed all paper and debris from the front and rear of their vehicle immediately after going on duty at 10:40 P.M. on February 19, 1973. Testimony of both officers revealed that the floor of the rear compartment of the automobile, which was separated from the front by a large plastic shield, was cleaned.

Prior to Phillips' arrest, the officers were absent from their vehicle on two separate occasions. Both such instances involved [160 Ind.App. 650] calls at 431 East DeWald Street. The officers testified that during the periods in which the automobile was left unattended, the doors were locked and the windows were closed. The evidence further shows that from the time that the officers departed from the police station after going on duty until the time that appellant was arrested and placed in the patrol car, no one other than the officers occupied the vehicle.

When questions with regard to the sufficiency of...